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United States v. Valentine

United States District Court, D. Nebraska

June 19, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JONATHAN VALENTINE, Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Senior United States District Judge

         This matter is before the Court on the Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (§ 2255 Motion), ECF No. 47.

         Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts requires initial review of a § 2255 motion, and describes the initial review process:

The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         BACKGROUND

         Defendant Jonathan Valentine pled guilty to Count I of the Indictment, charging a violation of Title 18 U.S.C. § 1951 (“Hobbs Act” robbery). The Court accepted his guilty plea and the plea agreement which provided for a sentence of 120 months imprisonment pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). ECF No. 29. In the plea agreement, the Defendant also waived his right of appeal and his right to pursue relief under 28 U.S.C. § 2255, with limited exceptions including claims of ineffective assistance of counsel.

         The Defendant was sentenced on December 10, 2018, to a term of 120 months imprisonment and three years of supervised release. His sentence was substantially below the advisory guideline range of 151 to 188 months incarceration, based upon his Total Offense Level of 29 and Criminal History Category VI. See Sentencing Recommendation, ECF No. 34. Restitution in the amount of $1, 256.50 was also imposed, to be paid jointly and severally with co-defendant Edward L. Sherrod. Judgment was entered on December 11, 2018, and an Amended Judgment correcting a clerical error was entered on December 14, 2018. No. appeal was filed.[1]

         The Defendant's § 2255 Motion is timely and it is his first such motion. In the Motion, he raises four grounds for relief, all based on alleged ineffective assistance of counsel: (1) Failure to file a timely notice of appeal, (2) Failure to file a motion to suppress Defendant's statement to an FBI agent, because Defendant allegedly asked that his attorney be present before he signed a Miranda waiver, (3) Failure to challenge the constitutionality of 18 U.S.C. § 1951(a), and (4) Failure to file a motion to suppress Defendant's statement to the FBI agent, because Defendant allegedly requested the appointment of an attorney after he signed the Miranda waiver. Because Grounds Two and Four are closely interrelated, they will be addressed together.

         DISCUSSION

         To establish ineffective assistance of counsel, the Defendant must satisfy both prongs of the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The performance prong requires a showing that counsel performed outside the wide range of reasonable professional assistance and made errors so serious that counsel failed to function as the kind of counsel guaranteed by the Sixth Amendment. Id. at 687-89. The prejudice prong requires a movant to demonstrate that seriously deficient performance of counsel prejudiced the defense. Id. at 687. “To establish prejudice, the defendant must demonstrate a reasonable probability that the result of the proceeding would have been different, but for counsel's deficiency.” United States v. Luke, 686 F.3d 600, 604 (8th Cir. 2012).

         GROUND ONE: Counsel's Failure to File a Timely Notice of Appeal

         In the Defendant's plea agreement, he waived his right of appeal, with limited exceptions, including a claim of ineffective assistance of counsel. ECF No. 29, Page ID 60-61. At his plea hearing, he acknowledged under oath that he was satisfied with the performance of his counsel, and that he understood he was waiving his right of appeal in his plea agreement.

         In the Defendant's “affidavit in support” of his § 2255 Motion, he contends that within fourteen days of his sentencing he wrote a letter to his attorney requesting that she file a notice of appeal. He states the letter was “deemed filed when he handed it over to prison authorities at Cass County Jail for forwarding to his attorney.” ECF No. 48.[2]

         From the Defendant's allegations, the Court cannot infer that his attorney received any request to file a notice of appeal within fourteen days of the date of the filing of the Amended Judgment. Accordingly, the Defendant has not shown that, by failing to file a notice of appeal within fourteen days of the date of the Amended Judgment, counsel performed outside the wide range of reasonable professional assistance or made errors so serious that counsel failed to function as the kind of counsel guaranteed by the Sixth Amendment. Further, because the Defendant's grounds for appeal all concerned allegations of ineffective assistance of counsel, the Court cannot infer that the alleged deficient performance of counsel in failing to file a notice of appeal in any way caused him prejudice. See, e.g., U.S. v. Spight, 817 F.3d 1099, 1103 (8th Cir. 2016) (“'[A] claim of ineffective assistance of counsel is generally not a basis for direct ...


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